********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
)
CC Licenses, LLC File Number EB-06-SD-108
)
Licensee of KXEW(AM) NAL/Acct. No 200632940007
)
South Tucson, Arizona FRN: 0001587971
)
Facility ID No. 8144
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: September 8, 2006
By the District Director, San Diego District Office, Western Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that CC Licenses, LLC ("CC Licenses "), licensee of station KXEW(AM),
South Tucson, Arizona, apparently willfully and repeatedly violated
Section 301 of the Communications Act of 1934, as amended ("Act"), by
operating an unlicensed Aural Broadcast Studio to Transmitter Link
("STL") transmitter on 944.865 MHz. We conclude, pursuant to Section
503(b) of the Act, that CC Licenses is apparently liable for a
forfeiture in the amount of four thousand dollars ($4,000).
II. BACKGROUND
2. On May 30, 2006, agents from the Enforcement Bureau's San Diego Office
conducted a monitoring survey of the Aural Broadcast STL users in the
greater Tucson, Arizona area. The agents, utilizing mobile direction
finding techniques, located and confirmed that a transmitter was
active on frequency 944.865 MHz. This signal was emanating from the
studios of KXEW(AM), located at 3202 N. Oracle Road, Tucson, Arizona.
The programming material heard on KXEW(AM) at 1600 kHz matched exactly
that of the audio of the 944.865 MHz station. The San Diego agents
researched the Commission's records for any authorized transmitters in
the greater Tucson area and determined that the transmitter observed
on 944.865 MHz was not licensed.
3. On June 1, 2006, the San Diego agents returned to the KXEW(AM) studios
and by utilizing mobile direction finding techniques confirmed again
that the STL transmitter operating on frequency 944.865 MHz was
emanating from 3202 N. Oracle Road, Tucson, Arizona.
4. On June 22, 2006, the San Diego Office issued a Letter of Inquiry
("LOI") to CC Licenses concerning their ownership and operation of the
unlicensed Aural Broadcast STL station for KXEW(AM) at 3202 N. Oracle
Road, Tucson, Arizona. CC License sent a response ("Response") to the
LOI on July 20, 2005. In its Response, CC Licenses acknowledges it did
not have an authorization for the STL transmitter on frequency 944.865
MHz for the location at 3202 N. Oracle Road. CC Licenses states that
under Section 74.24 of the Commission's Rules ("Rules"), KXEW(AM)
could operate this STL transmitter up to 720 hours under the
short-term operation provision. CC Licenses admits, however, that this
STL transmitter had been in year-round operation and exceeded the 720
hour limit. CC Licenses states it has an authorization for an Aural
Broadcast STL station, WLJ389, associated with another of its
stations, KWFM(AM), for use on different frequencies, 948.375 MHz and
948.625 MHz, at a different location, the previous KWFM(AM) studio
located on 3222 South Richey Avenue, Tucson, Arizona. CC Licenses also
states that it will file an application with appropriate frequency
coordination, to obtain appropriate licensing for the STL used with
KXEW(AM).
III. DISCUSSION
5. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty. The term "willful" as used in Section 503(b) has been
interpreted to mean simply that the acts or omissions are committed
knowingly. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
6. Section 301 of the Act requires that no person shall use or operate
any apparatus for the transmission of energy or communications or
signal by radio within the United States except under and in
accordance with the Act and with a license. Under Section 74.24 of the
Rules, broadcasters are given great flexibility to use auxiliary
broadcast stations for short-term operations. Such operation, however,
must be done on a secondary, non-interference basis to regularly
authorized stations, and may not exceed 720 hours annually. CC
Licenses acknowledges its operation of the STL transmitter at issue
here did not comply with the short-term operation authorized by
Section 74.24. CC Licenses also acknowledges it did not have an
authorization to operate this STL transmitter. Therefore, CC Licenses'
violation was willful. The operation occurred for more than one day,
therefore, the violation was repeated. Based on the evidence before
us, we find that CC Licenses apparently willfully and repeatedly
violated Section 301 of the Act by operating an unlicensed STL
transmitter on 944.865 MHz.
7. Pursuant to The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
("Forfeiture Policy Statement"), and Section 1.80 of the Rules, the
base forfeiture amount for operation without an instrument of
authorization for the service is $10,000. In assessing the monetary
forfeiture amount, we must also take into account the statutory
factors set forth in Section 503(b)(2)(D) of the Act, which include
the nature, circumstances, extent, and gravity of the violations, and
with respect to the violator, the degree of culpability, and history
of prior offenses, ability to pay, and other such matters as justice
may require. Given that the unauthorized operation in this case is
not a violation on the same order as construction and operation with
no color of authority, we believe a reduction in the base forfeiture
amount is warranted and, therefore, conclude a forfeiture amount of
$4,000 is appropriate. Applying the Forfeiture Policy Statement,
Section 1.80, and the statutory factors to the instant case, we
conclude that CC Licenses is apparently liable for a $4,000
forfeiture.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311,
0.314 and 1.80 of the Commission's Rules, CC Licenses, LLC, is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
four thousand dollars ($4,000) for violations of Section 301 of the
Act.
9. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, CC Licenses, LLC, SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
10. Payment of the forfeiture must be made by check or similar instrument,
payable to the order of the Federal Communications Commission. The
payment must include the NAL/Acct. No. and FRN No. referenced above.
Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA
15251-8340. Payment by overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
15251. Payment by wire transfer may be made to ABA Number 043000261,
receiving bank Mellon Bank, and account number 911-6106.
11. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, San Diego Office, 4542
Ruffner Street, Suite 370, San Diego, California, 92111 and must
include the NAL/Acct. No. referenced in the caption.
12. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices ("GAAP"); or (3) some other reliable and
objective documentation that accurately reflects the petitioner's
current financial status. Any claim of inability to pay must
specifically identify the basis for the claim by reference to the
financial documentation submitted.
13. Requests for payment of the full amount of this Notice of Apparent
Liability for Forfeiture under an installment plan should be sent to:
Associate Managing Director - Financial Operations, Room 1A625, 445
12th Street, S.W., Washington, D.C. 20554.
14. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to CC Licenses, LLC, at its address of
record.
FEDERAL COMMUNICATIONS COMMISSION
William R. Zears Jr. District Director
San Diego District Office
Western Region
Enforcement Bureau
47 U.S.C. S 301.
47 U.S.C. S 503(b).
47 C.F.R. S 74.24.
See Special Temporary Authority ("STA") Application, File No. 0002708276,
filed August 10, 2006, and STA granted September 7, 2006 (WQFP787). See
also File No. 0002727227, filed August 25, 2006.
47 U.S.C. S 503(b).
Section 312(f)(1) of the Act, 47 U.S.C. S 312(f)(1), which applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[t]he term 'willful', when used with reference to the
commission or omission of any act, means the conscious and deliberate
commission or omission of such act, irrespective of any intent to violate
any provision of this Act or any rule or regulation of the Commission
authorized by this Act...." See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
Section 312(f)(2) of the Act, 47 U.S.C. S 312(f)(2), which also applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[t]he term 'repeated', when used with reference to the
commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day."
47 U.S.C. S 301.
47 C.F.R. S 74.24.
Additionally, CC Licenses' operation of the STL did not comply with
Section 74.25 of the Rules, 47 C.F.R. S 74.25, which grants temporary
conditional operating authority for broadcast auxiliary stations, in some
situations, during the pendency of an application. During the time of the
San Diego Office inspections, CC Licenses had no application on file
concerning the STL at issue here.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S1.80.
47 U.S.C. S 503(b)(2)(D).
See Arnold Broadcasting Company, Inc., 19 FCC Rcd 14123, 14125 (EB 2004),
aff'd 20 FCC Rcd 10617 (EB 2005).
47 U.S.C. SS 301, 503(b), 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80.
See 47 C.F.R. S 1.1914.
Federal Communications Commission